Abortion battle redux in Georgia? GOP wants no part of that


The issue of abortion is still not settled in Georgia.

More than a week ago, Fulton County Superior Court Judge Robert McBurney ruled that the 2019 “heartbeat bill,” which largely prohibits abortion roughly six weeks into a woman’s pregnancy, is void. He said its passage was largely the equivalent of legislative dinner theater, a political show vote by lawmakers fishing for a battle before the U.S. Supreme Court.

On Wednesday, Georgia’s Supreme Court put a stay on McBurney’s ruling, putting the six-week ban back into place until it considers the arguments and issues its ultimate ruling.

McBurney is a quirky, busy fellow who often makes legal matters more interesting for us in the cheap seats. In his 15-page opinion, he wrote about “math” and “mystical higher wisdom,” tossed in a little Latin and even fifth-grade English, questioning the legislators’ verbiage: “The statute refers to a ‘detectable human heartbeat,’ “ he added in a footnote, “but it is unclear why the second adjective is necessary.”

He reasoned that limits on abortion, like those in the heartbeat bill, were unconstitutional back in 2019. Therefore, the law should not suddenly become legal now, even though Roe v. Wade was overturned this year. (That’s where the math came in. Fifty years ago, a majority of justices went for Roe. Now the court’s majority thinks the 1970s’ majority was screwy.)

McBurney included some Georgia higher court rulings, including one from 1850 saying: “The time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.”

He urged Georgia’s legislators to get back to work and pass an abortion law with the U.S. Supreme Court’s new ruling in mind. It will be more difficult this time, he ventured, because lawmakers will be operating in “the sharp glare of public attention.” This time, abortion laws “will carry real consequences for legislators and their constituents alike.”

The state is appealing the ruling.

Fulton Superior Court Judge Robert McBurney talks to the lawyers during a court challenge to Rudy Giuliani's subpoena to the Fulton County special grand jury examining Georgia's 2020 elections at Fulton Superior Court Thursday, August 9, 2022. Steve Schaefer / steve.schaefer@ajc.com)

Credit: Steve Schaefer

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Credit: Steve Schaefer

I talked with two former higher court judges who are skeptical that McBurney’s reasoning will hold up under the somber gaze of the Georgia Supreme Court.

One (they did not want their names used) told me: “If there is a change in the judicial understanding of the Constitution — but not a change in the Constitution itself — then judicial decisions must be retroactive. If the U.S. Supreme Court recognizes a ‘new’ constitutional right, it was always there . . . It just took a while for judges to appreciate it.”

The former judge said Georgia case law allows some protection of “personal liberty,” which I gather is a legal cousin of privacy.

“Whether the constitutional protection of personal liberty also extends to abortion is an open question that has never been addressed (to my knowledge) by the Georgia appellate courts,” he said.

Very few Republican legislators want to refight this battle. Why would they? They won. Why have to have to buy more Motrin?

I called state Sen. Jen Jordan, a Democrat who recently lost a shot at the Attorney General’s office and who gave an emotional speech against the abortion bill in 2019.

“It was smart on McBurney’s part; he didn’t make a substantive ruling. He’s putting it back in the legislators’ laps,” she said. “I don’t understand the whining. OK, Republicans, pass it again. But there’s consternation on their part. I don’t think they have the appetite to bring it up again.”

Veteran state Rep. Sharon Cooper is a registered nurse and one of the few Republicans who voted against the bill. She agrees about the lack of appetite. She noted the bill barely passed her chamber. The House voted 92-78, one vote more than the needed 91 to pass.

She does not disagree with McBurney’s thought that 2019 vote was symbolic.

“I think some people voted that way because they thought Roe v. Wade would never be thrown out,” said Cooper. “It might be a different vote based on the reaction of the nation” after it was overturned.

To most people, abortion is a wrenching, emotional and nuanced subject with no simple Yes and No answers.

“If you polled Republican women, ‘Are you pro-life?’ they’d say ‘yes,’ “ Cooper told me. “But if you asked about the heartbeat (bill), some would say ‘no.’

The photograph that Republican state Sen. Renee Unterman posted on Instagram before the March 22, 2019, marathon debate in the Senate on HB 481, the anti-abortion "heartbeat" bill.


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Legislators also know Georgians are split on the matter, with more who oppose the heartbeat bill than support it.

The latest nationwide Gallup polling shows women by a clear majority — 61% to 33% — consider themselves pro-choice over pro-life. With men, it’s a virtual tie, with 48% pro-choice, 47% pro-life. Also, the older you get, the more you’re against abortion.

It makes sense. Women, whose lives change the most with a pregnancy, prefer to have a choice. Especially those in child-bearing years. Go figure!

I’ve always believed the question should go to a plebiscite of the population. Better yet, just women should vote.

Back in the day, the irascible, and conservative, radio talker Neal Boortz did not allow men to discuss abortion on his show. The reason was simple — they could not conceive.

This reminds me of a photo shot in 2019, with former state Sen. Renee Unterman, a Republican, posing with many of the 33 GOP men who helped her pass it. No other woman in that chamber voted for the measure.

Talk about a picture being worth a thousand words. Or a million.